Symposium: It’s time to abandon anti-commandeering (but don’t count on this Supreme Court to do it)

Posted Thu, August 17th, 2017 10:44 am by Steven Schwinn

Steven D. Schwinn is a professor of law at John Marshall Law School in Chicago.

Students of the Constitution can be excused for scratching their heads at the anti-commandeering doctrine. That’s because this rule, which says that the federal government can’t require states or state officials to adopt or enforce federal law, has no basis in the text or history of the document. It has only weak support in precedent. And it’s unworkable.

Still, the doctrine is rearing its ugly head once again, this time in a pair of consolidated cases involving federal regulation of sports gambling. In particular, Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. NCAA raise the question whether the federal Professional and Amateur Sports Protection Act, which prohibits state-sanctioned sports gambling, runs afoul of the anti-commandeering doctrine when it prevents New Jersey from revoking portions of its prohibition on sports gambling. In other words, the cases ask whether the anti-commandeering doctrine prohibits the federal government not only from requiring states and state officials to adopt or apply federal law, but also from preventing states from repealing their own laws.

New Jersey’s move to allow sports gambling in the state is nothing if not clever. The state tried to revoke its statutory ban on sports gambling in a bald attempt to permit sports gambling under certain, selective circumstances, despite PASPA. The state originally argued that its move squared with an earlier ruling against it by the U.S. Court of Appeals for the 3rd Circuit; it now argues that PASPA cannot prevent it from revoking its law without violating the anti-commandeering doctrine. But New Jersey’s convoluted effort to shoehorn this case into the anti-commandeering doctrine only illustrates the doctrine’s unworkability.

As a result, this case is the perfect vehicle for the Supreme Court to jettison the anti-commandeering doctrine altogether. But don’t count on it: Key federalism rulings in recent years tell us that this court is nowhere close to abandoning this judicially-created federalism protection. So if the court is unwilling to jettison the doctrine, the justices should at least limit it, and flatly reject New Jersey’s disingenuous attempt to sidestep federal law in the name of anti-commandeering.

Our anti-anti-commandeering Constitution

The anti-commandeering doctrine says that the federal government cannot require states or state officials to adopt or enforce federal law. The Supreme Court created the doctrine out of the 10th Amendment and related federalism principles in two cases, New York v. United States in 1992, and Printz v. United States in 1997. But outside the court’s rulings in those cases, the doctrine has no basis in constitutional law.

First, the doctrine has no basis in the text and structure of the Constitution. If anything, the text and structure point in the other direction. For example, the supremacy clause makes the Constitution and federal laws supreme over state constitutions and state laws; it also binds state judges to the Constitution and federal law. The oath clause requires state legislators and state executive officers to swear an oath to support the federal Constitution, but doesn’t reciprocally require federal officers to swear an oath to support the states.

Other parts of the text specifically commandeer the states in various ways that cut to the heart of their independent sovereignty. For example, the Constitution requires state legislatures to provide for the election of federal representatives in Congress; it requires state executives to deliver fugitives from justice; it requires states to grant full faith and credit to the laws of other states; and it reserves to the states “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” The federal Constitution also imposes important restrictions on independent state sovereignty, most notably in Article I, Section 10; the privileges and immunities clause of Article IV; and, of course, the Reconstruction Amendments and other civil-rights amendments (all of which succeeded the 10th Amendment).

To be sure, the Constitution also provides certain specific protections for the states. But none of these says anything about commandeering. (And it’s not as if the framers didn’t know how to write anti-commandeering language, especially coming out of the Articles of Confederation, which authorized certain commandeering.) The 10th Amendment itself – the putative textual basis for the anti-commandeering doctrine – says only that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” This is only a formula for federalism, a “truism” that simply cannot bear the weight of the anti-commandeering principle, especially given the broader text and federal-supremacy structure of the document.

Second, the doctrine has no basis in the history of the Constitution. Again, if anything, the history points the other way. For example, Alexander Hamilton wrote in Federalist No. 27 that the new Constitution, “by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws.” He added that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of the laws.” James Madison supported Hamilton’s reading in Federalist No. 44. Madison asked why state officers should have to swear to support the federal Constitution, while federal officers do not have to swear to support state constitutions. His answer: Federal officials “will have no agency in carrying the State Constitutions into effect. The members and officers of the State Governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution.”

Moreover, the founders apparently assumed that the federal government could commandeer the states and their officers. In early debates, they envisioned that the federal government would commandeer state officers to collect federal taxes. And early Congresses required state judges to perform federal duties related to applications for citizenship and certifying the seaworthiness of vessels.

Anti-commandeering proponents argue that the Articles of Confederation explicitly permitted the national government to issue certain commands to the states, and that the Constitution, in a move away from that failed model, only authorizes Congress to regulate the people directly (and not the states). But just because the Constitution authorizes direct regulation of the people does not mean that it also claws back federal authority to regulate the states. Indeed, if the framers intended to remove that authority, they would have written such a provision right into the document (which they did not).

Third, the doctrine has no basis in precedent. The Supreme Court created the doctrine in New York from dicta and a misleading and incomplete quotation from two earlier cases that had nothing to do with commandeering. And the court famously declared that the doctrine was necessary to promote democratic accountability – to ensure that citizens knew which officials (state or federal) to hold to account for policies. But assumed citizen ignorance is no ground for such an important implied principle of constitutional law.

Finally, the doctrine is unworkable. For one thing, there is no sound distinction between commandeering, on the one hand, and valid federal regulation, on the other. (How is it different for state-sovereignty purposes when Congress requires a state to regulate nuclear waste in a particular way than when Congress requires a state to comply with the Fair Labor Standards Act?) For another thing, there is no sound distinction between commandeering and federal pre-emption. (How is it different, again for state-sovereignty purposes, when Congress requires a state to regulate waste in a particular way than when Congress pre-emptively sets its own federal floor for the regulation of nuclear waste, thus limiting states’ policy options?)

The New Jersey sports-gambling cases only illustrate the doctrine’s unworkability. New Jersey’s too-clever move poses the question whether preventing a state from revoking a statute amounts to commandeering. But under the anti-commandeering doctrine, there is no universal and principled way to answer. The best the Supreme Court can do is to navigate using its own anti-commandeering precedent, which doesn’t point to an inexorable result and which, in any event and as explained above, itself has no basis in the Constitution.

Abandoning anti-commandeering

The problems with the anti-commandeering doctrine recall the very similar problems that the Supreme Court faced with generally applicable federal legislation that also applied to the states. (Think the Fair Labor Standards Act and its application to state employment.) The line-drawing simply proved unworkable. Ultimately, the court in Garcia v. San Antonio Metropolitan Transit Authority abandoned its effort to police this kind of legislation in the name of state sovereignty and left it up to the political process.

The Supreme Court should do the same thing here: abandon the anti-commandeering principle, and leave it to the political process. But given the way this court has ruled in recent federalism cases (like Shelby County v. Holder and National Federation of Independent Business v. Sebelius), and (of course) given that abandonment is not formally part of the case, that outcome is unlikely. So instead, the court should resist New Jersey’s call to expand the doctrine into undefined (and undefinable) areas, only further damaging federalism, and restrict it to cases that are on all fours with New York and Printz.

Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.